The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Leon Roach ("Roach"), filed a timely petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction. Roach was convicted, following a jury trial, of two counts of criminal sale of a controlled substance in the second degree (N.Y. Penal Law ("Penal Law") § 220.41 ). Judgment was entered on January 11, 2002, in New York Supreme Court, Monroe County (Geraci, J.). Roach was sentenced as a second felony offender to two consecutive indeterminate terms of imprisonment of eight years to life. Roach's conviction was unanimously affirmed by the Appellate Division, Fourth Department, and leave to appeal to the New York State Court of Appeals was denied. People v. Roach, 2 A.D.3d 1389 (4th Dept. 2003), lv. denied 2 N.Y.3d 745(N.Y. 2004).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By Indictment Number 2201-212 and Indictment Number 2001-417, Roach was charged with three counts of criminal sale of a controlled substance in the second degree (Penal Law § 220.41 (1)), arising out of the following incidents. On three separate occasions in 2000, Roach sold cocaine to undercover Greece Police Officer John Henderson. Officer Henderson testified that he called Roach on November 9th, November 22nd, and December 7th to arrange meetings for the purpose of purchasing cocaine. (T.*fn1 191, 214, 229-231).
Roach's jury trial commenced on November 26, 2001, in Monroe County Court (Geraci, J.). At trial, Officer Henderson testified that after first meeting Roach on November 3, 2000, he called him on November 9, 2000, to set up a meeting to purchase cocaine. (T. 189, 191). During the taped telephone conversation, Roach and Officer Henderson agreed to meet at Cathay Pagoda, a Chinese restaurant in the City of Rochester, where Officer Henderson would purchase 31 grams of cocaine from Roach. (T. 199). An hour later, Roach met Officer Henderson at Cathay Pagoda and in a videotaped transaction he sold 31 grams of cocaine to Officer Henderson for $1,200. (T. 200-207).
On November 22, 2000, Officer Henderson called Roach again to arrange another meeting to purchase more cocaine. (T. 214-15). A half an hour later, the two met at Cathay Pagoda and Roach sold 28 grams of cocaine to Officer Henderson. (T. 218-19). Both the phone call in which the meeting was arranged and the actual meeting where the sale took place were recorded and presented at trial. (T. 219-20).
Officer Henderson's last meeting with Roach took place on December 7, 2000, after Officer Henderson called Roach and asked if he could purchase an ounce of cocaine. (T. 231). While the telephone conversation was recorded and presented at trial, the surveillance team was unable to videotape the third meeting. (T. 231-236).
At trial, the prosecution provided authenticated audio cassette recordings and transcripts of the three telephone conversation between Roach and Officer Henderson, as well as videotapes of the first two cocaine sales. In addition, the prosecution utilized testimony from Greece Police Officer Kevin Degnan, who had provided surveillance for the drug sales and field tested the cocaine that Henderson had purchased from Roach on November 9, 2000. (T. 308). Officer Degnan also explained how and where the cocaine purchases were safely and securely stored. (T. 308-12). The prosecution also had Linda Teague, a forensic chemist for the Monroe Country Public Safety Laboratory, testify that all three samples from Henderson's purchases tested positively for cocaine and the process for how the samples were handled. (T. 331-46).
At the close of the prosecution's proof, the defense did not present any witnesses. The defense did, however, make a motion for a dismissal of the charges, which was denied by the trial court.
(T. 350). The jury returned a verdict convicting Roach of two counts of criminal sale of a controlled substance in the second degree. (T. 455-56). Prior to Roach's sentencing, Roach made a motion pursuant to New York Crim. Proc. Law ("C.P.L.") § 330.30(3) on the grounds of newly discovered evidence. Roach claimed that newly received telephone records would impeached Officer Henderson's testimony regarding their telephone conversation that allegedly occurred on November 22, 2000, prior to the consummation of a drug sale that day. (S.*fn2 12-16). At sentencing, Judge Geraci denied this motion on the basis of overwhelming evidence against Roach for his involvement in the two cocaine sales of which he was convicted. (S. 16). Judge Geraci then sentenced Roach as a second felony offender and received a sentence of two consecutive terms of eight years to life. (S. 36).
Roach appealed his conviction to the New York State Appellate Division, Fourth Department, alleging that the trial court erroneously denied his motion to set aside the verdict based on newly discovered evidence, the trial court made an erroneous Sandoval ruling, and his sentence was harsh and excessive. See Appendix, State Court Records, Exhibit C, 1. Roach also submitted a pro se supplemental brief in which he raises four additional claims including: (1) the trial court erred in denying his motion to dismiss the alleged defective indictment; (2) the trial court erroneously denied his motion to hold an audibility hearing; (3) the trial court erred in allowing the prosecution to submit the alleged narcotics into evidence without establishing a proper chain of custody; and (4) the trial court erroneously denied his request for the jury to be charged on the law pertaining to the chain of custody. See Appendix, State Court Records, Exhibit F. The Fourth Department unanimously affirmed Roach's conviction reasoning that the trial court properly denied Roach's §330.30 motion because the newly discovered evidence was "'not of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.'" People v. Roach, 2 A.D.3d 1389 (4th Dept. 2003). In addition, the Fourth Department held that the trial court's denial to dismiss the indictment because it lacked sufficient evidence was not reviewable because Roach's conviction was based upon legally sufficient evidence at trial. Id. All remaining contentions were dismissed as being without merit. Id. at 1390. Roach then sought leave to appeal to the New York Court of Appeals which was denied. People v. Roach, 2 N.Y.3d 745 (2004).
Roach then made a motion pursuant to C.P.L. § 440.10(1) to vacate the judgment, alleging that he had ineffective assistance of trial counsel. See Appendix, State Court Records, Exhibit N. On July 24, 2004, the trial court denied this motion on the grounds that Roach failed to demonstrate that he was denied a fair trial by less than meaningful representation based on the trial counsel's failure to introduce evidence which Roach later claimed ought to have been used to impeach Officer Henderson. See Appendix, State Court Records, Exhibit Q. Leave to appeal this Order was denied by the Appellate Division, Fourth Department on February 4, 2005. Lastly, Roach filed a motion for a writ of error coram nobis based on ineffective assistance of appellate counsel. This motion and further leave to appeal was denied. Roach v. People, 15 A.D.3d 1016 (4th Dept. 2005) lv. denied People v. Roach, 4 N.Y.3d 835 (N.Y. 2005).
On September 25, 2005, Roach filed this instant petition in which he raises six grounds for relief: (1) trial court erred in denying motion to dismiss the defective indictment; (2) trial court improperly denied an audibility hearing; (3) trial court erred in allowing the prosecution to submit narcotic evidence without establishing chain of custody; (4) trial court erred in denying the defense's request to charge the jury on the law pertaining to chain of custody; (5) ...